Understanding Types of Free Speech

Freedom of Expression Must Adhere to Constitutional Guidelines

Jul 31, 2008

There are several major categories of expression that educators and students should understand when evaluating what constitutes "free speech" in the First Amendment.

Political Speech

Political speech is heavily regulated with respect to campaign finance laws and laws about slander or defamation. For the most part though, it is protected if not always popular. Any restrictions placed upon political speech must pass the “Strict Scrutiny” (Burson v. Freeman; R.A.V. v. St. Paul ) test of judicial review. If a law tries to ban the content of speech, it has to meet all three aspects of the strict scrutiny analysis:

Expressive Conduct

For the most part, wearing expressive t-shirts, and carrying banners or signs are all protected forms of speech. A noteable exception is the classic yelling “Fire” in a crowded theater that’s not on fire, because that endangers lives. Generally, though, expressive conduct is guided by “Time, Place and Manner” restrictions that require:

Flag burning is considered “symbolic free speech” (Texas v. Johnson), however distasteful some may find it. A general arson law could prohibit it, but only if it was applied across the board to burning anything. T-shirts worn in public can say just about anything, but t-shirts worn in public schools can be regulated because schools have a compelling interest in maintaining order.

Adult Entertainment

Adult entertainment typically refers to pornography, defined by Webster’s Dictionary as “writings, pictures, etc. intended primarily to arouse sexual desire.” With the exception of obscenity and child pornography, the First Amendment generally protects all other forms of pornography for adults.

Obscenity, and defining it, however, continues to confound courts at all levels. Child pornography is denied first amendment protection even if it does not meet the Miller obscenity standard, because the state has a compelling interest in preventing the sexual exploitation of minors. (New York v. Ferber).

Speech that May Endanger Others

Not all speech is protected under the first amendment. Speech that defames, endangers, or incites to violence is prohibited, but there are fine lines in determining actual threats. It’s illegal, for example, to order someone killed. But expressions of sympathy and support for unlawful actions are Constitutionally protected (Bond v. Floyd.).

Hate speech also walks a fine line. The government cannot ban it outright, if it’s simply a personal expression of opinion, however possibly heinous to others. But the expression cannot be a direct threat to others.

Defamation is another difficult category of speech. It refers to false statements of fact that may harm the reputation of another. It includes both libel, which is written defamation, and slander, which is spoken defamation. Arguments about defamation vary from intent to harm, to the right to protect one’s good name, and can be difficult to try.

Overthrow of the Government

This is an interesting category, because being able to question the government, and in some cases replace it, is an underlying principle of the Declaration of Independence. However, the government also has a compelling interest in some self-preservation. So there is no constitutional protection for indoctrination of a group preparing for future violent action (Yates v. United States), or the teaching of forceful overthrow accompanied by either directions or by a contemporary (even though legal) course of conduct for such overthrow (Scales v. United States)

What is protected is “doctrinal justification for forcible overthrow, even when engaged in with the intent to accomplish overthrow”. In Yates v. United States, the court ruled “The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.”

So while the First Amendment allows an enormous degree of latitude in the choices of free speech, students need to understand that there are instances when speech is not protected. Even those instances, however, are rarely rendered in black and white, and will no doubt continue to be challenged in the interest of upholding First Amendment rights to speak one's mind.

The copyright of the article Understanding Types of Free Speech in K-12 Subject Guides is owned by Theresa Willingham. Permission to republish Understanding Types of Free Speech in print or online must be granted by the author in writing.